SOUTHERN STORM (2007) LIMITED v THE CHIEF EXECUTIVE, MINISTRY OF FISHERIES HC WN CIV-2011-485-1670

SOUTHERN STORM (2007) LIMITED v THE CHIEF EXECUTIVE, MINISTRY OF FISHERIES HC WN CIV-2011-485-1670 [8 February 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2011-485-1670[2013] NZHC 117UNDER The Judicature Amendment Act 1972IN THE MATTER OF an application for judicial reviewBETWEEN SOUTHERN STORM (2007) LIMITEDApplicantAND THE CHIEF EXECUTIVE, MINISTRYOF FISHERIESRespondentHearing: 28 November 2012Counsel: R B Squire QC and M Sullivan for the ApplicantA Powell for the RespondentJudgment: 8 February 2013JUDGMENT OF MALLON JContentsIntroduction ....................................................................................................................................... [1]The Fisheries Act/Regulations .......................................................................................................... [4]The facts ............................................................................................................................................[11]The background ............................................................................................................................ [11]Preparations for search ................................................................................................................ [15]The search .................................................................................................................................... [23]Items seized .................................................................................................................................. [32]Review of items seized .................................................................................................................. [34]Subsequent events ......................................................................................................................... [36]Privileged information ................................................................................................................. [44]Current status of seized material .................................................................................................. [45]Whether judicial review appropriate ............................................................................................ [47]Scope of search ................................................................................................................................ [60]Submissions .................................................................................................................................. [60]My assessment .............................................................................................................................. [64]Legal professional privilege ............................................................................................................ [72]Submissions .................................................................................................................................. [72]Discussion .................................................................................................................................... [74]Result ................................................................................................................................................ [86]Introduction[1] Southern Storm seeks judicial review of a search and seizure conducted by the Ministry of Fisheries at its business premises. The search and seizure was conducted as part of the Ministry's investigation into alleged "dumping" of quotafish from the vessel Oyang 75 during two fishing trips in 2011. Southern Storm isthe permit holder for that vessel's fishing operations. Charges have since beenbrought and determined against five officers of the Oyang 75. The Ministry has not yet determined whether charges will be brought against Southern Storm.[2] Southern Storm seeks declarations that the search and seizure was unlawful under the Fisheries Act 1996 and unreasonable in breach of s 21 of the New Zealand Bill of Rights Act 1990 ("NZBORA"). It also seeks an order that the Ministry return the documents seized and copied. The grounds on which it seeks this relief are that:(a) the search and seizure is said to have been more extensive than permitted by s 199 and s 207 of the Fisheries Act because information irrelevant to the investigation into dumping was taken from the premises; and(b) no proper steps were put in place to protect legally privileged material.[3] The Ministry opposes Southern Storm's application. It says that judicialreview is not appropriate at this stage of the investigation. It also says that the search and seizure was lawful and executed in a reasonable manner.The Fisheries Act/Regulations[4] Permit holders have certain reporting obligations under the fisheries regulatory regime. Permit holders such as Southern Storm must complete and provide trawl catch, effort, and processing returns ("TCEPRs")1 and catch landing1 Fisheries (Reporting) Regulations 2001, reg 11.returns ("CLRs"). A separate TCEPR must be completed for each day's fishing.2 A CLR must be completed at the end of each fishing trip.3[5] Under the regulatory regime, it is an offence for any commercial fisher to return to or abandon in the sea any fish of legal size, or for which no legal size is set, that is subject to the quota management system (known as "dumping").4 Dumping may occur either because the fisher wants to maximise the quality of the return, or to dispose of non-targeted species which takes up room in the hold. The practice maximises the return for the fisher/permit holder. It also means fish taken from the sea is under-reported, which may result in the setting of a wrong Total Allowable Commercial Catch (TACC) increasing the risk that a species will be over-fished.[6] It is also an offence for any person to make a false or misleading statement in a TCEPR.5 Although the obligation for completion and filing of the returns is imposed on the permit holder, the day to day completion of TCEPRs is undertaken by officers of the vessel usually on each day while the vessel is at sea. Any acts or omissions of the crew of vessels registered in the name of a body corporate are deemed to be acts or omissions of a body corporate.6[7] Fishery officers have the power to carry out searches without a warrant in the investigation of an offence. That power is in these terms:199 Powers of entry and search...(2) If a fishery officer believes, on reasonable grounds,—(a) That an offence is being or has been committed against this Act; and(b) That—...(ii) Any record or information required by or under this Act to be kept, completed, or provided; or2 Regulation 11(2)(a).3 Regulation 6.4 Fisheries Act 1996, s 72.5 Section 230 and Fisheries (Reporting) Regulations 2001, reg 42.6 Section 246.(iii) Any article, record, document, or thing which there is reasonable ground to believe will be evidence as to the commission of an offence against this Act,—may be concealed or located or held in any vessel, vehicle, conveyance of any kind, premises, place, parcel, package, record, or thing—then, for the purpose of the enforcement of this Act, that officer may at any reasonable time enter or pass across any land in order to enter, examine, and search any such premises or place, or any such vessel, vehicle, or conveyance of any kind (by stopping or opening where necessary), and may examine and search (by stopping or opening where necessary) any such parcel, package, record, or thing.(3) A fishery officer may detain any vessel, vehicle, conveyance of any kind, parcel, package, record, document, article, gear, apparatus, device, container, fish, aquatic life, seaweed, or thing for such period as is reasonably necessary to enable the fishery officer to carry out an examination or search under this section.[8] A fishery officer also has the power to take copies of documents. That power is in these terms:206 Power to take copies of documents(1) In exercising powers under this Act, a fishery officer may—(a) Make or take copies of any record or document, and for this purpose may take possession of and remove from the place where they are kept any such record or document, for such period of time as is reasonable in the circumstances:(b) If necessary, require a person to reproduce, or assist the fishery officer to reproduce, in a useable form, information recorded or stored in a document....[9] A fishery officer also has the power to seize documents. That power is as follows:207 Powers of seizure(1) A fishery officer may seize—...(c) Any article, record, document, or thing which he or she believes on reasonable grounds is evidence of the commission of an offence against this Act....[10] Charges in respect of offences under the Fisheries Act must be brought within two years of the date on which it is alleged the offence occurred.7The factsThe background[11] Southern Storm is currently the permit holder for the fishing activities of theOyang 75 and Oyang 77. It charters those boats from Sajo Oyang. It had previously chartered the Oyang 70 but that vessel sank in August 2010. Oyang 75 embarked on its first fishing expedition in New Zealand waters on 8 March 2011 ("trip 1"). Itembarked on its second fishing expedition in May 2011 ("trip 2").[12] The investigation into the fishing activities of the Oyang 75 was triggered in May 2011. A Ministry observer was onboard the vessel on trip 2. The observer reported concerns about dumping to headquarters when the Oyang 75 entered port on 30 May 2011. The Ministry decided to investigate the matter. The investigation was led by Mr Burns.[13] In June 2011 the Indonesian crew of the Oyang 75 walked off the vessel because of a dispute over their pay and conditions. Mr Burns understood that their return to Indonesia was imminent. The Ministry therefore moved to interview each of the 32 Indonesian crew in early July 2011. Affidavits were then obtained from 19 of the crew. Each of those 19 crew confirmed that dumping had occurred on theOyang 75 on trips 1 and 2.[14] Mr Burns then carried out a preliminary inspection of the catch returns for trip 1. He identified issues with these returns. He considered that Southern Storm had not been diligent in checking the returns. He decided that the investigationshould move to its "termination phase". That was to involve a search of theOyang 75 and the business premises of Southern Storm.7 Fisheries Act 1996, s 236(2)(b).Preparations for search[15] Mr Robinson, a senior fisheries investigator, was tasked with preparing the operational orders and the scope of the search for the search team. Mr Robinson'sevidence about the necessary scope of the search was as follows:It was clear to me that the search at Roydvale Avenue would need to be more comprehensive than just the period (March – June 2011) the Oyang 75 had been fishing in New Zealand waters. In my view the search needed to determine [Southern Storm] structure, financial structure, was there a financial imperative to dump, who were the decision makers, what Compliance measures were in place, crew movements between the three company vessels, the impact of the loss of the Oyang 70 at sea, market issues, ACE cost considerations and issues such as that. I also had to bear in mind that [Southern Storm] liability was in respect of all three vessels and not just the Oyang 75. I had to also consider that if [Southern Storm] was offending in respect of the Oyang 75 then the Company may also be offending or have offended in regard to the other two vessels, but that was a separate issue. It was important for me to consider that the three vessels and [Southern Storm] were all intertwined.The information required for an investigation of this size and nature can be very broad but I felt my search instructions (which I discussed with FI Backhouse) were both focussed and purposeful. The core of the search was in relation to the Oyang 75 but I had to consider all the wider issues at play.The use of s 206 allowed us to look at these peripheral issues which may not have been direct evidence of dumping but were certainly important to better understand [Southern Storm] and its fishing activities.[16] The "mission" of the search was set out in Mr Robinson's operational ordersas follows:To gather evidence of offending against the Fisheries Act 1996 in relation to the fishing activities of the FV OYANG 75 including the alleged dumping of fish and any subsequent misreporting by persons onboard the FV OYANG 75 and its permit holder Southern Storm (2007) Ltd for the period March 2011 to June 2011.[17] The operational orders set out the "execution" of the termination phase of theinvestigation. The team assigned to search the premises was headed by Mr Backhouse, an experienced fisheries investigator. In addition to Mr Backhouse, the team comprised two fisheries officers, two forensic analysts and a Korean interpreter. The task of this team was set out as follows:Tasks: Search offices for all pertinent documents relating to this investigation.This includes:- any documents relating to the fishing activities of the FV OYANG 75 and in particular March 2011 to present but including documents created before this period;- any documents constituting an agreement in relation to parties involved in the fishing activities of the FV OYANG 75;- any communications between parties involved in the fishing activities of the FV OYANG 75;- documents relating to compliance with Fisheries Act.Financial Records including –- financial statements (monthly and annual).- monthly management reports- general ledger/trial balance and any journal entries- identify the types of transactions contained in each ledger- identify bank accounts/NZ companies associated with permit holder- flow of funds to/from companies to/from overseas- purpose of funds from NZ to Oyang Corporation e.g. marketing, vessel running costs, ACE purchase costs- Company minute books- Minutes of meetings- Paid invoices/vessel costs/povidoring/berthage/unloading costs- GST records- Wages/PAYE/bonuses- Computer records belonging to Hyun Gwan CHOI, Director of Southern Storm (2007) Ltd during the offending period- Computer records belonging to Kyung Yung LEE, Manager of Southern Storm (2007) Ltd.- Computer records belonging to Soon Nam SO, current sole Director and Shareholder of Southern Storm (2007) Ltd.[18] This was followed by the following note:Note: This list is not exhaustive. All documents are to be taken under the provisions of S206, Fisheries Act 1996. All seizures are to be brought to the attention of the Exhibits Officer and photographed/uplifted by him in situ.[19] Mr Backhouse's evidence is that he was not surprised about the breadth of thesearch they were to undertake given the nature of the investigation. He says that motivation is often critical to proving who was responsible for dumping and that requires a full picture of the financial position of the permit holder and the relationships between Southern Storm and the vessels. He says that it is often necessary to examine documentation over a number of years to obtain the full picture.[20] Mr Robinson briefed the team charged with searching Southern Storm'spremises. Mr Robinson's evidence is that he cannot remember if the issue of "legally privileged" documents arose at the briefing. This topic was not addressed inthe operational orders either. Mr Robinson says, however, that he was confident that if Mr Backhouse located legally privileged documents, he would not read them or remove them from the premises. He says that both he and Mr Backhouse were involved in a 2009 investigation "where the issue of legal privilege and the Ministry's right to seize electronic devices was challenged in the High Court so we were both mindful of the outcome of that hearing." He also says that Mr Smith, the fishery analyst on the team dealing with the electronic material, was also involved inthat case and "was fully versed in how to deal appropriately with the electronic material."[21] Similarly, Mr Backhouse says:There was no specific mention of legally privileged documents that I can recall from the briefing, and I had no particular reason to believe that we were likely to encounter a significant number of them during a search of the premises of a permit holder. Even so, I was well aware of the possibility that such documents might be found amongst the correspondence and knew that they were not to be examined or taken for copying. I knew that thecompany's legal advisers were Mr Sullivan's firm, Ocean Law so anythingfrom or to that company would obviously be in that category and could readily be identified. I had reinforced with my team that if they came across any legally privileged documentation they should not read it and not take it for copying.[22] The other member of the search team who provided an affidavit was Mr Smith. He was the analyst tasked with the search of the computers at the premises. His affidavit describes his process in obtaining forensic images of the computers and does not refer to any instructions about privilege at the briefing.The search[23] The searches of Southern Storm's premises and the Oyang 75 were scheduled to occur simultaneously on 7 July 2011. Mr Backhouse received a call from Mr Burns at about 2:50 pm, informing him that the team searching the Oyang 75 had boarded the vessel, and Mr Backhouse's team was to go ahead with the search ofSouthern Storm's premises. A few minutes later Mr Backhouse's team was at thepremises.[24] There were three Korean employees of Southern Storm present. They were taken into the kitchen area where Mr Backhouse showed them his warrant of authority and introduced himself as a fishery officer. Mr Backhouse advised them that he had reasonable grounds to believe that the Oyang 75 had been illegally dumping quota species during its two fishing trips from March to June 2011. He explained that he would be searching the premises for documentation and cloning computers. The three Korean employees were required to leave the premises while the search was carried out. The fisheries officers began examining documents.[25] At about 3:30 pm Mr Te Kaat arrived at the premises. Mr Te Kaat is a consultant who provides advice to fishing companies that are subject toinvestigations. He had been contacted by Southern Storm's legal advisers and askedto attend the premises to provide assistance to Southern Storm's managers and to monitor the Ministry's actions. When Mr Te Kaat arrived at the premises, the three Korean employees were standing outside. They told Mr Te Kaat that they had been instructed to leave the office and that no-one other than Ministry personnel were permitted access.[26] Mr Te Kaat then attempted to enter the premises. He was told by a fisheries officer that he was not permitted to enter and that Mr Backhouse would speak to himsoon. He asked the fisheries officer what power they were using to search theproperty. He says that the fisheries officer responded "section 205" and then "section 215".8 Mr Backhouse then emerged from the premises. He told Mr Te Kaat the purpose of the search was to investigate dumping from the Oyang 75 and that he was not to enter the premises.[27] Sometime after 4:00 pm Mr Fisken, a forensic accountant, arrived at the premises. In the months prior to the search he had been instructed by Southern Storm to audit its fishing returns and had been in discussions with Southern Storm'slegal advisers about concerns he had identified in his audit. He received a telephonecall from Southern Storm's legal advisers late in the afternoon of the search and was instructed to go to the premises to "assist in protecting legally privilegeddocuments". His evidence is that, from his dealings with Southern Storm, he was aware "that there was a considerable amount of legally privileged material at [the] premises both on computers and in hard copy".[28] When Mr Fisken arrived at the premises he saw Mr Te Kaat standing outside. He told Mr Te Kaat of his instructions. Mr Te Kaat then approached Mr Backhouse. He told Mr Backhouse that there was privileged material, both paper and electronic, on the premises. He asked Mr Backhouse to apply "appropriate methodologies todeal with them". According to Mr Te Kaat, Mr Backhouse said that any privileged information would be sealed and not read. Mr Backhouse says that he did not say that the privileged information would be sealed, only that it would not be read. Mr Fisken's evidence is that Mr Backhouse said that they would deal with any privileged documents appropriately and that when Mr Te Kaat tried to clarify what Mr Backhouse meant he refused to clarify this further.[29] Mr Fisken then asked Mr Backhouse what the Ministry was looking for. Mr Backhouse said to Mr Fisken that the Ministry had reason to believe that theOyang 75 had been dumping hoki, squid and other species on its first and second fishing trips. Mr Fisken says that he left Southern Storm's premises at 6:45 pm because Mr Backhouse refused to allow him to identify privileged documents.8 Section 215 is a general power for a fishery officer to "do all such acts and things and give suchdirectives as may be reasonably necessary for the purpose of exercising any of his or herpowers" under the Fisheries Act.Mr Backhouse says that he did not recall any discussion between himself and Mr Fisken about allowing him to enter the premises to identify privileged documents. He says that in any event he would not have allowed Mr Fisken into the search area as it was part of Mr Backhouse's job to maintain the integrity of thescene.[30] In the course of the search the computer electronic records were copied, while the other fisheries officers concentrated on searching the paper records. Mr Backhouse says there was a substantial volume of paper contained in large white storage boxes, Eastlight files and other folders and loose on the desks in the main office area. Mr Backhouse says that the team did not take documents on the basis that they could later be sifted through for relevance. He says that although it was impossible for the team to physically examine each individual document or folders of documents in detail, they were all examined and decisions were made about their relevance to the investigation. He says that many of the folders contained the same kinds of documents. He says that where documents in a file or folder were considered to be evidence of offending, it was usually the case that all the documents in that folder or a large majority of them met the criteria for evidence as to the offending. In such cases he says that the whole file or folder was taken for copying. He says that the team certainly did not take all the documents from the premises.[31] The Ministry completed its search of Southern Storm's premises and the recording of documents at 9:15 pm. The documents were transferred back to theMinistry's office. Mr Robinson says that after the search he became aware that the question of legally privileged documents had been raised during the course of the search. He says that he was assured that the search team had dealt with the issue appropriately.Items seized[32] The items seized in the search were as follows:(a) three computers, and one laptop belonging to Mr Lee from Sajo Oyang;(b) pay records including timesheets and deduction summaries;(c) Oyang 77 catch reports;(d) Oyang 70 catch records including TCEPRS;(e) Oyang 77 crew employment and wage summaries;(f) Oyang 70 crew wage records and summaries;(g) crew advances and bonus schedules;(h) creditor invoices, including invoices from Hall Fisken & Associates and Oceanlaw New Zealand;(i) older supplier creditor invoices;(j) sales invoices both export and domestic;(k) bank statements;(l) old bank documents and sales information;(m) Inland Revenue Department statements;(n) all cashflow documents; and(o) various agreements, draft agreements and other documents relating to contractual arrangements and negotiations between Southern Storm and Sajo Oyang.[33] In total, 104 items were taken from the premises and the Oyang 75, ranging from one document to files to file boxes full of documents. These items were returned to Southern Storm by 15 July 2011, that is, within one week of the search.Review of items seized[34] Mr Robinson oversaw the copying and return of documents taken fromSouthern Storm's premises and from onboard the Oyang 75. Mr Robinson says that he looked through the majority of the documents. He found a letter inside a file box containing Annual Catch Entitlement transactions which he considered could be privileged. He says that he did not read or copy the letter but left it in the file box which was marked for return to Southern Storm.[35] Mr Burns was involved in the photocopying of documentation from SouthernStorm's premises. During this time he came across invoices for Oceanlaw toSouthern Storm, which were spread out amongst other bill payments. Although his experience was that tax invoices were not privileged documents, he says that he adopted a precautionary approach and decided to separate the invoices from the other documentation. He says that the invoices were placed into an envelope and werestored in a locked cabinet in the exhibits room. He says that "except for [his] firstglances" he has not examined the invoices.Subsequent events[36] Following the search, there was an exchange of correspondence between Southern Storm's legal advisers, Oceanlaw, and the Ministry. Southern Storm was concerned about the extent of the search undertaken by the Ministry. It understood that the search related to an investigation into alleged dumping of quota species but many of the documents removed by the Ministry were completely unrelated either to the Oyang 75 or to the period when it fished in New Zealand. Oceanlaw wrote to Mr Burns on 8 July 2011 expressing concern about the extent of the search and the substantial amount of privileged material seized. Southern Storm sought a satisfactory explanation for the nature and extent of the seizure.[37] The Ministry's solicitor responded by letter dated 11 July 2011. The letterassured Oceanlaw that "the protocols surrounding privileged materials" were beingmet. As to the power under which the Ministry was acting in removing documents, the letter said:Fisheries Officers are indeed investigating dumping allegations, which as you will be aware is the subject of the interviews this week. However the Fisheries Act 1996 also allows the copying of business records for the administration of that Act. Accordingly, the materials removed from the Roydvale Avenue address last week were removed pursuant to s.206 of the Fisheries Act 1996 for copying purposes except those relevant to dumping.[38] Oceanlaw responded by emailed letter dated 11 July 2011 seeking clarification of the scope of the Ministry's investigations apart from the dumpingallegations. It also asked that the Ministry articulate what it was doing to protect privileged items and requested an undertaking from the Ministry that the materials would not be examined by Ministry officers before the appropriate protocols were in place to sift out privileged and irrelevant confidential material. It also requested confirmation of the extent to which the records had already been examined.[39] On 12 July 2011, the Ministry's solicitor responded to Oceanlaw's letterdated 11 July 2011. The letter discussed the Ministry's approach to privilegedinformation during and after the search:During the initial search and uplifting of documents from Roydvale Ave and on the vessel Oyang 75 the exhibits officer had considered if the document in question was privileged or relevant. Material that was obviously privileged or irrelevant material was left behind. It is possible that privileged or irrelevant material was inadvertently uplifted. For example, letters from your firm were encountered by the searching officers. They were not read or examined in any way. The officers were briefed in this regard prior to the attendance at Roydvale.All steps were and are being taken to protect privilege. As documents are examined, anything that is immediately and obviously privileged is put to one side. For example, it seems two photographs were taken of an area which had a letter from your firm in the photograph. These were not uplifted, or examined in the search. When returned to the office, it was obvious the a [sic] photograph had that in it. It was permanently deleted having not been read. Irrelevant material, which has been uplifted, is simply put to one side to be returned. Commercially sensitive and irrelevant material is put to one side to be returned. Of course, for some documents a cursory examination may be required to ascertain relevance/privilege.I do not agree with your reading of the United Fisheries decision that it applies to hard copy material – in my view, it only applies to electronic information due to the different searching techniques required by that storage medium.The computer hard drives have of course been cloned. These have not been examined at this time. In accordance with the United Fisheries decision, an independent barrister will need to be appointed to examine them. That iscurrently under action and I will be in touch shortly with our proposals in that regard. I need to speak to our IT expert....[40] On the scope of the search, the letter said:We repeat the process that is occurring is an inspection of the company'sdocuments as part of an investigation into an allegation of fish dumping, as well as an audit of its business (which is fishing) structures. I would not goas far as saying "a large part" of the materials seized go only to the audit. It is possible that a document could be relevant to both, or peripheral to both areas. Until the investigation is complete, we are not in a position to say where a document fits. And of course, the relevance or otherwise of a document may be determined at a much later date. A document could shift from irrelevant to relevant as this matter progresses. We are reluctant to pigeon hole any one document at this time, aside from those that are obviously privileged.[41] Oceanlaw responded by letter dated 15 July 2011. It expressed concern that the Ministry had already breached legal privilege. It stated:... On the face of your letter, it appears that fishery officers reviewed documents at Roydvale Avenue, notwithstanding the advice that there was privileged material contained within them and, after reviewing those documents to ascertain whether they were privileged, to set aside any documents that they considered were privileged. Privilege is absolute. The mere act of reviewing the document is a breach of that privilege.[42] There was further correspondence between the Ministry and Oceanlaw about the protection of privileged information within the electronic data seized, but the parties did not reach an agreement. Southern Storm filed proceedings in August 2011.[43] In September 2011 five officers of the Oyang 75 were charged in relation to the dumping activities. The charges were found proven at a formal proof hearing in June 2012. Four of the officers were sentenced in September 2012 with fines totalling over $400,000. At the time the affidavit evidence for the hearing before me was filed, the fifth officer was yet to be sentenced. If charges are to be brought against Southern Storm, they must be laid in March 2013 (being two years from the date of the alleged offending).Privileged information[44] There is evidence that there were documents at Southern Storm's premisesover which Southern Storm claims legal professional privilege. Mr Fisken's affidavit refers to the instructions he received from Southern Storm's solicitors in theMarch 2011 to June 2011 period. As mentioned above, from these dealings he was aware that there were privileged documents on the computers and in hard copy. This is confirmed by the affidavit of Mun Gyeong Su, the general manager of Southern Storm. He also refers to a file taken by the Ministry which the Ministry described as"1 x Drop file – containing Peter Dawson – Lawyer – Invoices". He says that this description could only have been given by at least some reading of the documents. He says this is of concern because the invoices detail the work undertaken by their advisors. Examples of invoices have been filed to demonstrate this point.Current status of seized material[45] No examination of the electronic copies of the computer records (i.e. "forensic images") had taken place as at the time of the hearing. The Ministry put this "in abeyance pending finalisation of an agreement or conclusion of theseproceedings." There was some discussion between counsel at the hearing as towhether the process for inspection of the computer copies could proceed. This was left with counsel to advance.[46] The documents that were copied (i.e. not the computer records) have beeninspected by the Ministry. Any documents that "appeared to be legally privileged orirrelevant to the investigation or administration of the Fisheries Act 1996 on initialexamination were put aside unread". An independent lawyer was appointed to review material over which privilege was claimed but this review has not proceeded pending advice from Southern Storm about the material over which it claims privilege.Whether judicial review appropriate[47] The first issue raised by the Ministry in response to Southern Storm'sapplication is whether the judicial review application should be entertained. Southern Storm contends that this is a proper case for judicial review. The Ministry submits that it is not.[48] Both parties relied on Gill v Attorney-General in support of their position.9That case concerned a search, pursuant to a search warrant under s 198 of the Summary Proceedings Act 1957, of a medical practice. The medical practice was under investigation by the Ministry of Health for suspected fraudulent claims for Ministry payments. The Court of Appeal held that judicial review was not the appropriate means of challenging the search in that case. This was because:10... First, [the judicial review action] was prematurely taken. The criminal investigation was in its early stages and not all of the seized material had been reviewed. Second, if criminal charges had been laid against Dr Gill, various opportunities would have arisen to challenge the validity of the warrant and/or its execution either before any trial or in the course of it. Consideration of the warrant and any evidence obtained pursuant to it could more appropriately have been tested pursuant to an application under s 344A of the Crimes Act. Issues of relevance, admissibility generally and exclusion of evidence (taking into account s 30 of the Evidence Act 2006) could therefore have been conveniently ruled on. Judicial review will rarely be appropriate where there is a readily available alternative remedy, and in particular the courts have held that they will only intervene in matters which involve the exercise of a prosecutorial discretion or investigative power in exceptional cases.[49] The Court of Appeal went on to comment that it was possible that "groundsmay exist in appropriate cases to challenge a search warrant by judicial reviewproceedings."11 It noted that the court had previously entertained such challenges"where the defect in the search warrant is of a fundamental nature, where the mattercould be said to go to the jurisdiction of the issuing officer or where some other ground of true unlawfulness (such as want of jurisdiction) is established".12 It9 Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433. See also A (A Firm ofSolicitors) v The District Court at Auckland [2012] NZCA 246 and Tauber v Commissioner ofInland Revenue [2012] NZCA 411, (2012) 25 NZTC 20-143 endorsing Gill.10 Gill v Attorney-General at [19].11 At [20].12 At [20].referred to examples where search warrants were too widely drawn13 and where, in a case involving a search of a firm of solicitors, there was an absence of a mechanism for dealing with legal professional privilege.14[50] Southern Storm contends that the present case falls within these examples given by the Court of Appeal in Gill. However, in referring to these examples, the Court of Appeal was not saying that judicial review on the basis that a search was conducted too broadly or without proper mechanisms to deal with legal professional privilege is always appropriate. The Court of Appeal went on to note that the examples it had referred to pre-dated s 30 of the Evidence Act, under which there is a mechanism for determining in criminal cases whether evidence improperly obtained should be excluded.15 It said that it would be open to a court, in the exercise of its discretion, to decline relief on a judicial review application brought in the course of acriminal investigation "if it might involve the premature exclusion of evidence divorced ... of proportionality issues."16[51] The Court of Appeal in Gill also considered there to be "considerable force"in observations made in R v Chief Constable of Warwickshire, ex parte Fitzpatrickthat a challenge to a search on the grounds that it was excessive should, except in the clearest of cases, seek a private law remedy rather than a judicial review one.17 Itconcluded that judicial review "should rarely be permitted to be used to challengethe issue, validity and execution of a search warrant, particularly in the course of aninvestigation into alleged criminal offending".18[52] Despite what is said in Gill, neither counsel considered the risk of premature exclusion of evidence as relevant to whether relief should or should not be granted if unlawfulness was made out. The Ministry says that if the judicial review application is entertained, and if it is found that the search was unlawful, then it follows that the items obtained pursuant to that search should be returned. It sees a difference13 At [21] and [22], referring to Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728 (CA) andTranz Rail Ltd v Wellington District Court [2002] 3 NZLR 780 (CA).14 At [23], referring to A Firm of Solicitors v District Court at Auckland [2006] 1 NZLR 586 (CA).15 At [24].16 At [27].17 R v Chief Constable of Warwickshire, ex parte Fitzpatrick [1999] 1 WLR 564 (QB) at 579,referred to in Gill at [25].18 At [29].between continuing to hold documents which the court has ruled were unlawfully obtained and making an application to the court to determine the admissibility of such documents in the context of a criminal proceeding where the court has not previously ruled on the lawfulness of how they were obtained.[53] In support of this view counsel for the Ministry referred to Taylor v The Attorney-General for New Zealand.19 That case concerned judicial review of a notice issued by the police requiring a blood sample from the applicant under the Criminal Investigations (Bodily Samples) Act 1995. In the High Court it was common ground that the District Court ordered the taking of the sample one day after the statutory time limit for taking the sample had expired. As a result the District Court had no jurisdiction to make the order.[54] The Crown submitted that the sample should be retained, and that the circumstances in which it had been obtained could be taken into account when assessing its admissibility in any criminal trial. The High Court said that this was not the proper approach because the legislation set out the mandatory consequence, which was that the Judge must make an order that the notice requiring the sample was of no effect and no sample was authorised to be taken.20 The High Court said that the holding of the sample was unlawful. The Crown accepted that, on making that declaration, it would destroy the sample.[55] The context here is different. The taking of bodily samples "represents the greatest intrusion by the state into the privacy of the individual."21 The legislation sets out procedures which must be complied with. If they are not, the search is likely to be unreasonable.22 The Fisheries Act does not set out the consequence of a search conducted outside its powers. In Gill the availability of other remedies to challenge the search (including on an application under s 344A of the Crimes Act where s 30 of the Evidence Act would be relevant) was a reason why the Court considered that the judicial review application was not appropriate.23 The Court also considered s 30 as19 Taylor v The Attorney-General for New Zealand HC Wellington CIV-2005-485-530, 4 May2005.20 At [31].21 Sylvia Bell (ed) Brookers Human Rights Law (online looseleaf ed, Brookers) at [BOR21.05].22 At [BOR21.05], citing R v Shaheed [2002] 2 NZLR 377 (CA).23 Gill v Attorney-General, above n 9, at [19].relevant to whether relief should be granted even if grounds of challenge were made out.24[56] Southern Storm submits that whether evidence is or is not to be admitted under s 30 is an irrelevant consideration at this stage. It submits it is something that might only arise if a criminal prosecution is brought and there is a challenge to the evidence obtained pursuant to the search. It submits that if the search is found to be unlawful it cannot be right to decline relief. It refers to the following comments of the Chief High Court Judge in Dotcom v Attorney-General:25The issue of the engagement of criminal trial process counts, if it counts, at the point of time of determining what relief should be granted. As to the firstdefendant's reliance on Gill, that case was concerned with very different facts. Judicial observations that there is something exceptional about the availability of judicial review need to be viewed within the particular context in which they arise. Where genuine (non technical) grounds for review are made out, it will be the refusal of relief (even if only in the form of a declaration) that is the exceptional course, rather than the reverse.[57] The Ministry submits that Dotcom does not address the issue of justiciability, that is whether the application for review should be entertained at all. It submits that this is the issue that the Court of Appeal in Gill was considering. It submits that the view in Dotcom is on the basis that the application for review has been entertained and the search is found to be unlawful. It also submits that the context in Dotcom is distinguishable.[58] I agree with the Ministry's submission that the Dotcom context was different than here (or Gill). Dotcom was concerned with judicial review of search warrants issued and executed in New Zealand, pursuant to a request by the United States Government under the Mutual Assistance in Criminal Matters Act 1992. The request was for the assistance of the New Zealand police with the investigation of suspected criminal offending and for which the United States Government was seeking extradition. In that context the Judge considered that there would be no alternative24 At [27]. See also Andrew Butler and Petra Butler The New Zealand Bill of Rights Act : ACommentary (LexisNexis, Wellington, 2005) at [18.33.5] to [18.33.9] proposing limitedcircumstances in which it would be appropriate to make an order for the return of seizeddocuments.25 Dotcom v Attorney-General [2012] NZHC 1494, [2012] 3 NZLR 115 at [35].remedy in New Zealand for any invalidity and illegality in the search and seizure process.26[59] In the context of the Fisheries Act, as in Gill, there is a need for caution in entertaining judicial review applications of the exercise of search and seizure powers when an investigation into suspected criminal offending is still on foot. As in Gill, there are other potential avenues to challenge the lawfulness of the search and seizure which do not interfere with the ongoing investigation,27 do not involve the premature exclusion of evidence, and which do not have the limits of a judicial review application. In light of Gill Southern Storm's application for relief should not be entertained unless this is a clear case of an unlawful search and seizure of a fundamental kind which can be readily determined on the basis of affidavit evidence. Even then, relief might be declined in the exercise of my discretion if the relief would prematurely exclude evidence that is potentially admissible under s 30 of theEvidence Act. I approach Southern Storm's grounds for review on this basis.Scope of searchSubmissions[60] Southern Storm contends that the Ministry seized documents without determining their relevance. It says that there is no power to seize irrelevant documents. Southern Storm refers to:(a) Mr Fisken's affidavit evidence that documents taken by the Ministryduring the search went well beyond anything that could relate to the fishing activities of the Oyang 75. He gives examples, including the catch records and crew wage records for the Oyang 70 and theOyang 77.26 At [35].27 Although there is a general public interest in criminal investigations proceeding expeditiously,there is a particular need for this in the context of a Fisheries Act investigation because of thetwo year time limit for bringing charges.(b) The letter dated 12 July 2011 from the Ministry's solicitor where it is said that the documents taken were being inspected in part in relation to dumping and also as part of an audit and that relevance or otherwise might be determined at a much later date etc.28(c) The Ministry's statement of defence pleaded that "the documents thatare not relevant to the investigation were seized for the purposes of the administration of the Fisheries Act 1996, including an audit of[Southern Storm's] business structure" and "those documents wereseized and taken for copying (if necessary) under ss 199 and 206 of the Fisheries Act".[61] Southern Storm contrasts the position conveyed by the Ministry's solicitorafter the event that some of the documents were taken as part of an audit, with the affidavit evidence of those planning and carrying out the search which make no mention of an audit. It submits that the solicitor referred to an audit to seek to justify a search that was too broad. It submits that there was no power to take irrelevant material (under s 207) and it follows that the copying of this irrelevant material was also unlawful (under s 206).[62] The Ministry submits that the evidence shows that there was a reasonable belief that Southern Storm had been involved in offending and a reasonable beliefthat evidence of offending would be found at Southern Storm's premises. Thought had been given to the type of evidence that would likely be found at SouthernStorm's premises and no greater specificity was required.[63] The Ministry says that an audit can proceed in parallel with an investigation (relying on R v Jarvis) providing the target is aware that they are being investigated for offending.29 It says, however, that here the audit basis advanced by theMinistry's solicitor and repeated in the pleadings is not supported by the evidence ofthe fisheries officers involved in the planning and execution of the search. It says that on their evidence the search was pursuant to s 199(2). It says that s 206 permits28 Set out at [40] above.29 R v Jarvis 2002 SCC 73, [2002] 3 SCR 757.the documents to be taken for the temporary purpose of copying them. It says that the search and taking of the documents for copying was therefore lawful. It says that the search was executed reasonably because the search power must entail the ability to look through documents to separate the irrelevant from the relevant.My assessment[64] The issue raised by Southern Storm is not a clear case of unlawfulness of the kind which should properly be entertained at this stage of an investigation. The evidence of Mr Robinson explains the kind of information that was relevant to an investigation into dumping.30 This included information about motive to engage in dumping and information about the decision makers. This explains why information in relation to the other vessels was seen as relevant. Mr Backhouse's evidencesupports this.31 Mr Backhouse explains that only files that were considered to contain relevant information were taken for copying.32[65] Mr Fisken has a different view. His view, and the evidence after the event that the documents were taken as part of audit33 and that the relevance of some of the documents had not yet been determined,34 may provide a basis for challenging Mr Robinson's and Mr Backhouse's evidence. But any such challenge should be thesubject of cross-examination and findings of fact can then be made. This conflict inthe evidence makes "the rather blunt instrument of judicial review" unsuitable.[66] In any event, even if some irrelevant material was taken for copying that would not necessarily make the search and seizure unlawful under the Fisheries Act or an unreasonable search and seizure under the NZBORA. The submission for Southern Storm is that the documents taken for copying were a seizure of documents and therefore, under s 207, only relevant documents could be seized for copying under s 206. Southern Storm contends that decisions on relevance needed to be made during the search which extended over a number of hours. Documents could30 Refer [15] above.31 Refer [19] above.32 Refer [30] above.33 Refer [40] above.34 Refer [40] above.not be taken for sifting through later to determine their relevance. The Ministry contends that the documents were taken under s 206 and not s 207. It says that s 206 permits the Ministry to take documents for the temporary purpose of copying those that are relevant.[67] This issue arose in Chief Executive, Ministry of Fisheries v United Fisheries Ltd in relation to the cloning of computers which contained irrelevant and privileged information, as well as information which the Ministry believed on reasonable grounds was evidence of an offence.35 The computers were cloned following asearch of United Fisheries Ltd's premises as part of an investigation into allegedoffending under the Fisheries Act. The Ministry seized three computers and cloned the hard drives for later inspection. The joint judgment of Glazebrook and Ellen France JJ considered that it was lawful to clone the computer because, in terms of s 207, it was a "thing" believed on reasonable grounds to be evidence of an offence.Therefore the issue was whether the Ministry had acted reasonably.[68] This reasoning does not directly apply to the current facts, unless it can besaid that a file is a "thing" (eg. because the location of a relevant document in the file was relevant as in the example given of diary entries, or for some other reason it should be regarded as one item rather than a container with a number of items). In that case it would be lawful to take boxes or files on which there were reasonable grounds to believe there was evidence of offending, even though not all the individual items within the box or file would be evidence of offending.[69] Baragwanath J approached the issue differently. His view was thatParliament must have intended "to allow fishery officers to carry out their search ofwhat may be relevant or irrelevant so long as there is no reason to apprehend the presence of privileged information" (his emphasis).36 His Honour considered that the search power in s 199(2) must import the power to look through the irrelevantmaterial for what will be evidence. That power must be "exercised reasonably" which was "the real issue".37 Later in his judgment, Baragwanath J noted that there35 Chief Executive, Ministry of Fisheries v United Fisheries Ltd [2010] NZCA 356, [2011] NZAR54.36 At [60(b)].37 At [47].was no specific procedure for the protection of private or confidential materialprovided by Parliament and so it "must be taken to have entrusted fishery officers with the task of dealing appropriately with such material."38[70] A further passage in his Honour's judgment suggests that there needs to be similar protections for irrelevant material that is private and confidential as that for privileged information.39 As I understand his Honour's reasoning, this goes towhether a lawful search (that is one that the Fisheries Act empowers) has been conducted reasonably (so that it is a reasonable search under the NZBORA). Thatfits with his Honour's view that the statute must be made to work and that means that the fisheries officers must be able to sort the "wheat from chaff".40 This issue was left open by Glazebrook and Ellen France JJ, though they agreed that there was"force in the argument that many searches ... will involve perusal of both relevantand irrelevant material to find the relevant if the relevant matter is likely to be foundin a place where irrelevant material is stored".41[71] In light of United Fisheries, I consider that the Ministry were acting within their powers to take files where they believed on reasonable grounds that the files contained relevant information, even though they might also contain irrelevant information. The issue is whether it exercised its powers reasonably. On the evidence of Mr Backhouse, the Ministry took the time to make decisions about relevance in respect of each file that was taken, even though every document was not examined in detail. If that evidence is to be challenged, this is not the appropriate time or manner to do so. As is said in Gill "issues of excessive seizure are usuallyfact-intensive and wholly unsuited to judicial review."42 Whether the Ministry acted reasonably in taking the items which they did is better determined in a context other than judicial review where the facts can be fully tested. I therefore decline to order relief under this ground of review.38 At [57].39 At [61].40 At [60(b)].41 At [82].42 At [92].Legal professional privilegeSubmissions[72] Southern Storm contends that the Ministry had no lawful power to search the premises, or continue its search after being advised that there were legally privileged documents held on the premises and on computers located in the premises, without first taking steps to protect legally privileged documents from examination during the course of the search. It says that the seizure of the documents and computers wasunlawful for the same reasons. It says that the Ministry's process required the officers to at least carry out a cursory look at a document to determine if it might be privileged. It says that even the merest glance at a privileged document breaches the protection the law provides to privileged documents and constitutes an unlawful search.[73] The Ministry submits that the search of Southern Storm's premises waslawful and reasonable. It says that the evidence of Mr Backhouse, Mr Robinson and Mr Burns shows that reasonable steps were taken to protect legally privilegeddocuments. It says that the search was not of a solicitor's office or a place where itwould be expected that a large volume of privileged or confidential and irrelevant material would be stored. It says that after the search the Ministry has sought to agree on procedures with Southern Storm to identify and protect any privileged documents, but no agreement has been reached.Discussion[74] Legal professional privilege is regarded as a fundamental condition on which the administration of justice as a whole rests.43 Parliament can only abrogate privilege by statute in an express and unequivocal manner.44 Some enactments set43 B v Auckland District Law Society [2003] UKPC 38, [2004] 1 NZLR 326 at [37] citing R vDerby Magistrates' Court ex parte B [1996] 1 AC 487 at 507-508. As noted in Waterford vCommonwealth of Australia (1987) 163 CLR 54 at 64, "the wisdom of the centuries is that theexistence of the privilege encourages resort to those skilled in the law and that this makes for abetter legal system".44 Rosenberg v Jaine [1983] NZLR 1 (HC) at 8 per Davison CJ.out procedures for dealing with documents over which a person claims legal professional privilege upon execution of a search.45 At the relevant time the Fisheries Act did not, although it did incorporate the procedures set out in s 198A of the Summary Proceedings Act 1957 where the search relates to documents at asolicitor's office.46 In the absence of specific statutory procedures, common law must supplement the legislation.47[75] One of the issues in Chief Executive, Ministry of Fisheries v United Fisheries Ltd was that the computers had been cloned without procedures in place to protect legally privileged documents.48 Baragwanath J's view was that where there is reasonto apprehend the presence of privileged information "the system for searching must protect that information."49 He considered that it was not lawful to clone thecomputer "without adoption of a procedure to protect the privileged interest" and that "such protection is a condition precedent to a lawful cloning."50 Glazebrook and Ellen France JJ considered that it was lawful to clone the computer even though a procedure had not been put in place to protect privileged information prior to the cloning. They considered that steps taken to protect legally privileged information went to the reasonableness of the exercise of the search power.[76] The Ministry acted in accordance with United Fisheries in relation to the search and seizure of the computer hard drives. The computer hard drives were cloned by Mr Smith, and the Ministry negotiated with Southern Storm as to the appropriate process for searching the cloned hard drives in order to protect privileged information. Pending agreement on a process for the search or the resolution of this proceeding, the Ministry refrained from searching the hard drives.45 Section 24(5) of the Serious Fraud Office Act 1990 provides that a person claiming privilege orthe director can apply to a District Court Judge for an order determining whether or not the claimof privilege is valid. Similar procedures are found in the Tax Administration Act 1994, s 20(5);the Customs and Excise Act 1996, s 162(4) ; and the Proceeds of Crime Act 1991, s 74(4).46 The Search and Surveillance Act 2012 now regulates the protection of legally privilegeddocuments on the execution of searches, but this Act was not in force at the time of the search ofSouthern Storm's premises.47 Chief Executive, Ministry of Fisheries v United Fisheries Ltd, above n 35.48 At [55].49 At [60(b)].50 At [60(b)].[77] The issue here is whether the Ministry took the correct approach to the search of the hard copy documents, particularly when it was informed (by Mr Te Kaat) that there were legally privileged documents on the premises. The Ministry team continued to search the documents, without seeking any further detail from Mr Te Kaat or Mr Fisken as to where privileged documents would be located or seeking their assistance to identify documents over which privilege was claimed. On theMinistry's evidence its process meant that any privileged material would be at leastglanced at even if only to make a decision as to its relevance. The evidence for Southern Storm is that there was legally privileged information on the premises in hard copy form and included in the documents taken.[78] Southern Storm contends that this was unlawful. It relies on dicta of Baragwanath J in United Fisheries which is as follows:51Realistically the task of protecting privileged material cannot be left to the fishery officer alone. If the officer were given carte blanche to examine all records on premises there would be no protection for such material would fall short of that standard [sic] imposed by ss 206(2) and 207(3). A practical option is to interpolate a trustworthy independent lawyer to whom the occupant of the premises may claim privilege before the fishery officer examines the document. The lawyer will inspect the document and, if the objection has merit or is arguable, place it in an envelope which will be sealed and put before a judge for determination of the objection. ...I would impute to Parliament an intention to allow fishery officers to carry out their search of what may be relevant or irrelevant so long as there is no reason to apprehend the presence of privileged information. But if there is such reason the system for searching must protect that information....Provided there is no reasonable basis to apprehend that the information is privileged, the officer is entitled to look at it, whether relevant or not. But on my construction he is not entitled to look at any information that is arguably privileged, whether or not it is relevant.Section 198A of the Summary Proceedings Act, imported by ss 206(2) and 207(3) of the Fisheries Act, as well as the overarching common law make clear that privileged information may not be searched. Protection must extend to both relevant and irrelevant material that is arguably privileged. Only the Court can determine a dispute as to its status. Until it pronounces, the search procedures must keep the information from the eye of the officer.51 At [59], [60(b)], [62], [63] and [67].... Parliament has recognised that the merest glance at such material may infringe the privilege which the substantive law is at particular pains to protect. ...[79] Glazebrook and Ellen France JJ agreed with Baragwanath J that steps needed to be taken to protect legally privileged material. They stated:52We add that we agree with Baragwanath J that where legally privileged material is involved, a reasonable exercise of the search power will entail taking steps to protect such material. The use of an independent barrister and an independent computer expert are obvious ways of meeting concerns of this nature. ...[80] They also concluded their judgment by saying that "[i]n all other respects, we agree with the judgment of Baragwanath J."53 Southern Storm submits that this comment means that Glazebrook and Ellen France JJ agreed with the dicta ofBaragwanath J set out above. It submits that this means that the Ministry's searchwas unlawful because it did not have a system to protect the privileged information from the eyes of the investigating officers, who at the least must have glanced at the privileged information.[81] In my view United Fisheries did not hold that a search was unlawful under the Fisheries Act if privileged documents are glanced at in the course of a search in order to determine whether a document is relevant or not. Nor did it hold that the search would be unreasonable under NZBORA if that occurred. In his dicta, Baragwanath J was emphasising the importance of the privilege and the need for a system to protect that privilege. A glance at a privileged document infringes the privilege but that in itself does not make the search unlawful or unreasonable.[82] There is Australian authority to the effect that in some circumstances it will be lawful for those executing a search to glance at a document over which privilege is claimed for the purpose of determining whether it might be covered by the privilege.54 The circumstances are said to include "cases where no one is present toclaim the privilege and when there is a blanket claim for privilege and it is52 At [81].53 At [83].54 JMA Accounting Pty Ltd v Commissioner of Taxation [2004] FCAFC 274, (2004) 211 ALR 380;Allitt v Sullivan [1988] VR 621 (VSC); referred to in Avowal Administrative Attorneys Ltd vDistrict Court at North Shore (2009) 24 NZTC 23,252 at [47].reasonably apparent that the claim is not sustainable."55 Similarly, in Calver v District Court at Palmerston North (No 1) the Court commented on circumstances where a police officer would need to examine a document in order to determine whether it could be subject to legal privilege.56[83] Here, on the basis of the affidavit evidence, those searching the premises were conscious of the need to protect privilege. Their system for doing so was to put them to one side without looking at them any further. As is said by the Law Commission in its report, Search and Surveillance Powers, the difficulty with the approach that the Ministry adopted here is that it undermines the privilege.57 Anypossibility that the fisheries officers may view privileged information "is likely tocreate a perception that the material will inform the investigation".58 Is it realistic for Southern Storm to accept that the investigators only glanced at the Oceanlaw letterhead on a document without seeing any more of its content? In this caseSouthern Storm's concern might be heightened because, on the basis of Mr Fisken'sevidence, it seems that there may have been privileged information directly relevant to the matters being investigated. It is unclear on the evidence exactly what the fisheries officers understood could be the subject of privilege or how they would be identified other than any documents to or from Oceanlaw, as this was not set out in any written material provided to the team or apparently discussed in detail in the briefing to the search team.[84] The Ministry were searching the business premises of Southern Storm. There was at least the prospect that they would encounter legally privileged documents. They were then directly advised of this by Mr Te Kaat. This was not a situation where no-one was present to assist or where a blanket claim for privilege had been made. It would have been better if Mr Backhouse had asked Mr Fisken to at least identify where the privileged documents would be found. Without at least asking this question, they were not in a position to know whether there was a practical solution to the claim that privileged documents were present. Potentially they could have had an independent solicitor supervise the search and/or have sealed any55 JMA Accounting Pty Ltd v Commissioner of Taxation at [14]-[15].56 Calver v District Court at Palmerston North (2004) 21 CRNZ 371 (HC) at [47].57 Law Commission Search and Surveillance Powers (NZLC R97, 2007).58 At [12.28].documents identified as including potentially privileged material without looking at them.[85] Whether the Ministry should have had a different system for protecting privilege, however, goes to the reasonableness of the search. There is no true unlawfulness of the kind envisaged in Gill. At best the appropriate relief on this application would be a declaration because an order requiring the documents to be returned would pre-empt a consideration of the admissibility in any ensuing prosecution. Although there may be an issue about the reasonableness of what occurred, there are potential remedies available to Southern Storm outside this judicial review application which do not risk interfering with an existing investigation and which will enable the evidence as to what occurred to be fully tested. I therefore decline to order the relief sought under this ground of review.Result[86] The application for relief is dismissed.Mallon JSolicitors:Oceanlaw New Zealand, Nelson for the ApplicantCrown Law, Wellington for the Respondent